Tortolani, Ronald & Ors v Group 4 Securitas [1997] FCA 987

Tortolani, Ronald & Ors v Group 4 Securitas [1997] FCA 987

The applicants were not entitled to severance pay because cl 38(c) required termination by the employer and the respondent did not terminate their employment. On the evidence, the respondent advised employees they could apply to PMI if they wished to remain at the airport, but also indicated that employees who remained with the respondent would retain employment and be paid. The applicants accepted employment with PMI and thereby voluntarily left the respondent. The respondent's conduct, viewed as a whole, was not an absolute refusal to perform the employment contracts and did not breach the implied duty of trust and fidelity.

Jurisdiction
Australia
Judgment Date
19 September 1997
Procedural Posture
Proceedings Under S 179 of the Workplace Relations Act 1996 Claiming Amounts Allegedly Due Upon Redundancy / Final Hearing and Judgment
Outcome
Applications dismissed
Legal Topics
['breach of Award' 'redundancy' 'severance Pay' 'termination of Employment' 'notice of Termination' 'resignation' 'repudiation of Employment Contract']
['industrial Law' 'employment Law'] ['breach of Award' 'redundancy' 'severance Pay' 'termination of Employment' 'notice of Termination' 'resignation' 'repudiation of Employment Contract']

Case Brief

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Procedural Posture

Proceedings Under S 179 of the Workplace Relations Act 1996 Claiming Amounts Allegedly Due Upon Redundancy / Final Hearing and Judgment

Legal Issues

  1. 1 ['Whether entitlement to severance pay under cl 38 of the Security Employees (Victoria) Award 1993 required termination of employment by the employer' "Whether the respondent terminated the applicants' employment when it lost the Qantas and Ansett passenger screening contracts at Tullamarine Airport" 'Whether the applicants voluntarily left the respondent to take employment with the incoming contractor, Protection Management (International) Pty Ltd' "Whether the respondent repudiated the applicants' contracts of employment or breached the implied duty of trust and fidelity" 'Whether, if there had been termination, it fell outside cl 38 because it was due to ordinary and customary turnover of labour or because of transmission of business']

Ratio Decidendi

The applicants were not entitled to severance pay because cl 38(c) required termination by the employer and the respondent did not terminate their employment. On the evidence, the respondent advised employees they could apply to PMI if they wished to remain at the airport, but also indicated that employees who remained with the respondent would retain employment and be paid. The applicants accepted employment with PMI and thereby voluntarily left the respondent. The respondent's conduct, viewed as a whole, was not an absolute refusal to perform the employment contracts and did not breach the implied duty of trust and fidelity.

Court Disposition

Applications dismissed

Orders

  • ['The applications are dismissed.']